Gooden v. Director, Office of Worker's Compensation Programs

REVISED, MARCH 13, 1998

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-60751

JOHNNIE GOODEN,

Petitioner,

versus

DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR; ITO
CORPORATION,

Respondents.

Appeal from a Decision of the
Benefits Review Board

March 12, 1998

Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner Gooden (Gooden) was a longshoreman employed by ITO

Corporation (ITO) as a forklift operator. On November 13, 1990,

Gooden suffered a heart attack that necessitated a triple coronary

bypass surgery three days later. Unable to work after the surgery,

Gooden sought benefits under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. § 901, et seq. (LHWCA).

The claim was referred to an Administrative Law Judge (ALJ) in

Metairie, Louisiana, who dismissed the claim on the grounds that
there was no relationship between Gooden’s employment and his

underlying cardiac disease. This dismissal was subsequently

affirmed without review by the Benefits Review Board, pursuant to

Omnibus Consolidated Rescissions and Appropriations Act of 1996,

Pub.L. No. 104-134 § 101, 1996 U.S.C.C.A.N. (110 Stat.) 1321-218,

219.1 Gooden, raising several points of error, now appeals.

Facts and Proceedings Below

It is undisputed that Gooden had preexisting heart disease

dating back to 1987. In that year, he underwent a balloon dilation

of a coronary artery and a coronary angiography, which revealed the

coronary artery disease, but the disease was not severe enough to

warrant surgery. He returned to work and did not suffer any

symptoms for the next three years.

On October 31, 1990, Gooden was working for ITO as a forklift

operator and experienced chest pains while physically lifting bags

of rice that had fallen from the pallets, which he was moving

around with his forklift. Gooden continued to work and went to a

hospital after work. He was given medication and released from the

hospital. The doctor recommended that Gooden undergo an

angiography, but the procedure was delayed by Gooden, who said he

needed to work.

On November 13, 1990, Gooden again experienced chest pains

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Under the Appropriations Act, appeals from ALJ decisions under the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et
seq. that had been pending before the Benefits Review Board (BRB)
for more than one year before September 12, 1996, such as Gooden’s,
were to be considered affirmed by the BRB and final for purposes of
appeal as of that date.

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while lifting heavy bags that had fallen from their pallets. It is

unclear when the chest pains actually started. The hospital

records list the “onset of injury” as having occurred at two

o’clock in the morning while Gooden was at home. The isoenzyme

analysis, however, reveals a pattern of enzyme levels that indicate

that Gooden suffered a myocardial infarction “several hours” before

the initial blood specimen taken at 3:45 p.m. on November 13.

Gooden testified he felt the pains at work. He subsequently

took his medication and the pains subsided for a while. In the

afternoon, when the pains returned, he reported them to his foreman

and his doctor. At his doctor’s recommendation, Gooden admitted

himself to the hospital.

At the hospital, he was diagnosed with an acute myocardial

infarction. An angiography was performed, and subsequently he

underwent a triple bypass surgery. He did not return to his job as

a forklift operator and has not worked since.

Gooden sought compensation for his injury under the LHWCA, but

the claim was denied by the ALJ for lack of causation. The ALJ

found that Gooden had met his initial burden of establishing a

prima facie case of causation under section 920(a), but he also

found that the employer met its burden of rebutting the presumption

with substantial evidence that showed the injury did not “arise”

out of the employment.

Specifically, the ALJ relied on the testimony of two

cardiovascular physicians who testified that the symptoms may have

been caused or unmasked by Gooden’s work, but that the work did not

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cause or aggravate the cardiovascular disease. He discounted

testimony to the contrary by a third doctor, who specialized in

internal medicine but was not a cardiovascular specialist.

Discussion

I. Due Process

Gooden contends that automatic affirmance under the

Appropriations Act violates his due process rights by retroactively

depriving him of a level of review by the BRB. In Shell Offshore,

Inc. v. Director, Office of Workers’ Compensation Programs, 122

F.3d 312, 315 (5th Cir. 1997) we specifically rejected this

argument and held that this provision of the Appropriations Act is

constitutional. In light of Shell, we hold that this provision

does not violate Gooden’s due process rights.

II. Presumption

Gooden contends that the ALJ misapplied the section 920(a)

presumption, 33 U.S.C. § 920(a). Section 920(a) establishes that

once a claimant puts forth a prima facie case, the claim is

presumed to come within the LHWCA; this presumption can be rebutted

by “substantial evidence to the contrary.” 33 U.S.C. § 920(a).

A claimant, such as Gooden, bears the initial burden of

establishing that (1) he suffered an injury and (2) the accident

occurred in the course of employment or conditions existed at work

that could have caused the harm. See Kelaita v. Triple A Machine

Shop, 13 BRBS 326, 331 (1981). Once the claimant has established

his prima facie case, a presumption is created which can be

rebutted by the employer through substantial evidence establishing

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the absence of a connection between the injury and the employment.

See Kier v. Bethlehem Steel Corp., 16 BRBS 128, 129 (1984); Parsons

Corp. of California v. Director, Office of Workers’ Compensation

Programs, 619 F.2d 38 (9th Cir. 1980). If the employer rebuts the

presumption, then the issue of causation must be decided by looking

at all the evidence of record. See Stevens v. Tacoma Boatbuilding

Co., 23 BRBS 191, 192 (1990).

In this case, the ALJ found that Gooden established his prima

facie case, and, thus, the burden shifted to ITO to bring forth

substantial evidence to rebut the presumption. Instead of

following a formal three-step analysis, the ALJ blended the second

and third steps into one step. In so doing, the ALJ considered all

the evidence presented by both parties, rather than first

considering ITO’s evidence alone and then considering both parties’

evidence together only if ITO’s evidence had rebutted the initial

presumption.

While the ALJ’s analysis of the issue may have strayed from

the formal three-step process, we conclude that this departure was

not error. To hold otherwise would elevate form over substance.

If the judge found that the evidence defeated the claim, then

surely he found it sufficient to rebut the initial section 920(a)

presumption. The initial presumption is either rebutted or it is

not rebutted; which party’s evidence produces the rebuttal is

essentially irrelevant.

III. Proper Focus

Gooden contends that the ALJ erroneously focused on the

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origins of his underlying heart condition, rather than on the

ultimate heart attack. We agree.

An LHWCA employer generally takes his employee as he finds

him. See Pacific Employers’ Ins. Co. v. Pillsbury, 61 F.2d 101, 103

(9th Cir. 1932) (“The employer accepts the employee subject to

physical disabilities, which may make the latter more susceptible

to injury than would be a stronger or more robust person . . . .”).

Thus, the focus should be on the ultimate injury, not Gooden’s

preexisting condition. In this case, the injury for which recovery

is sought is the heart attack, not the underlying heart disease.

It is well settled that a heart attack suffered in the course

and scope of employment is compensable even though the employee may

have suffered from a related preexisting heart condition. In Todd

Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962) and

Southern Stevedoring Co. v. Henderson, 175 F.2d 863 (5th Cir.

1949), for example, the court awarded LHWCA benefits to workers who

had suffered heart attacks while at work, despite their pre-

existing heart conditions. The Henderson court stated:

“The Act gives compensation for accidental injury or
death arising out of and in the course of employment; it
does not say caused by the employment. There is no
standard or normal man who alone is entitled to workmen's
compensation. Whatever the state of health of the
employee may be, if the conditions of his employment
constitute the precipitating cause of his death, such
death is compensable as having resulted from an
accidental injury arising out of and in the course of his
employment. If the workman overstrains his powers,
slight though they be, or if something goes wrong within
the human frame, such as the straining of a muscle or the
rupture of a blood vessel, an accident arises out of the
employment when the required exertion producing the
injury is too great for the man undertaking the work; and
the source of the force producing the injury need not be

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 external.” Henderson, 175 F.2d at 866, quoted with
approval in Donovan, 300 F.2d at 745.

Conclusion

Since the ALJ erroneously focused his analysis and findings on

the underlying disease, his decision is vacated and the cause is

remanded for further proceedings, with instructions that the

findings must address the heart attack itself, consistent with our

Henderson and Donovan opinions. Whether a dismissal of Gooden’s

claim under an appropriate analysis is supportable is a matter we

leave in the first instance to the ALJ on remand, subject to review

by the BRB and this Court.

VACATED and REMANDED

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